Lowell/shoe's Claimform - EGG Pers Loan

[balina2]

The court have emailed me to say hearing stood down due to lack of judiciary and will be relisted.

Is that simply they don't have a Judge?

Would something else have caused this?

[dx100uk]

nope good news

gives you more time to organise this properly.

 

 

dx

[shamrocker]

Arrow didn't own the debt in 2010 (period covered by the statement), Egg did...right?

 

Can you clarify the above for us?

[balina2]

Egg assigned it to Arrows in 2012

[Guest]

The court have emailed me to say hearing stood down due to lack of judiciary and will be relisted. Is that simply they don't have a Judge?

sounds like it.

as suggested, a bit more time, to consider if there is any further 'written evidence' you want to rely on for the SJ hearing (cpr part 24 and PD)?

[shamrocker]

Egg assigned it to Arrows in 2012

 

That's why they haven't paid anything to Arrow then. The payments relate to 2010.

 

Can you be certain that they didn't pay anything to Egg?

[balina2]

I can show 4 months bank statements that no money went to Egg in the 2010 time period states on the Egg statement provided by Arrows.

 

Do I now draft a witness statement?

Do I email this to both the court and Shoosmiths?

In the meantime Shoosmiths are still hassling me as below..

 

I write with reference to the above matter and further to my emails below.

 

As you are aware,

the hearing listed for today has been stood-down due to a lack of Judiciary.

 

Having spoken to the Court, I understand it is their intention to re-list the hearing as soon as possible.

 

In the circumstances, I invite you to forward the copy statements you previously referred to,

so that my client may consider the same ahead of the hearing being re-listed.

 

As previously advised, any documents disclosed during the course of these proceedings will remain confidential and will only be used for the purpose of these proceedings.

[shamrocker]

Which bank account do you mean?

 

You said the account that the loan repayments were coming from was closed in 2007.

I'm confused.

 

Don't give the claimant anything other that what you disclose in a WS.

[balina2]

The bank that the loan payments were coming from was closed in 2007. I had a new bank account from thereon.

[shamrocker]

They're asking for statements from the account that was paying the loan, are they not?

 

Is this new account the one you were paying funds into the DMP from?

[balina2]

They've asked for bank statements from the original account,

aka the one that I had at the point the loan was setup.

They've not stated what time period though.

 

They also asked for bank statements from any account I held in 2010.

Both of which I'm considering inappropriate requests.

I've never held multiple current accounts.

I had one until 2007 then a new one from then.

No DMP payments in 2010.

[shamrocker]

Ok. Time to start writing a WS which denies the payments made in 2010 and asserts that the last payment/acknowledgement was 2007, as per their default notice (or whatever it is supposed to be), thus the debt is state barred. Put the claimant to strict proof as to the source of the payments they allege were made in 2010 in Exhibit [?].

[balina2]

Does my WS need to include my bank statements as exhibits?

Or can I state that I am able to provide at the hearing but am unwilling to send these to the claimant for data protection reasons?

[shamrocker]

You don't need to mention statements.

 

Keep it simple - you merely state that, further to receiving information outlined in the Claimant's WS, you now recognise the debt to be that of a previous agreement you entered into with the original creditor (assuming you accept the agreement as valid).

 

However, you considered the matter to be statute barred by virtue of the Limitations Act 1980, as the last payment or acknowledgement was in 2007. This coincides with the Default Notice exhibited by the Claimant.

 

The Claimant further discloses a statement of account covering the peroid xx/xx/xxxx to xx/xx/xxxx which indicates sporadic payments of £3.61 deducted from the account balance.

 

The payments were not made by you nor on your behalf, thus they are denied.

 

Consequently, the Claimant is put to strict proof to evidence any transaction history within the six year period prior to the date of claim issue, detailing the source of the payments...etc..etc.

 

Post draft up for review/feedback.

[balina2]

Hi, I have drafted as follows.

May be too much information, so appreciate feedback.

 

I really wanted to get across two things though,

firstly

the reason why my initial defence wasn't that it was statute barred and

 

secondly

that I have evidence to show the payments were not made (albeit that the burden of proof is not on me)

 

I confirm that I consider this matter to be statute barred by virtue of the Limitations Act 1980, as the last payment or acknowledgement was in 2007.

This coincides with the Default Notice exhibited by the Claimant.

 

The Claimant further discloses an alleged reconstituted statement of account covering the period September 2009 to August 2010 which indicates sporadic payments of £3.61 deducted from the account balance.

 

I did not make these alleged payments, nor anyone on my behalf, thus they are denied.

 

Consequently, the Claimant is put to strict proof to evidence any transaction history within the six year period prior to the date of claim issue.

 

I have already taken the following steps to garner this evidence myself.

 

On the 3rd May 2016 I contacted the Claimant as follows;

 

I have just received a letter today, dated 28th April which I need further clarification on.

You claim in the letter that I ignored previous correspondence regards sending me proof of debt.

 

I need to confirm to you that I have not received any such correspondence so I am at a loss as to your short window of saying you will proceed with an application for Summary Judgement.

 

Please ensure any correspondence is sent to me at XXXXX as this will speed up my receipt of such items.

And can you re-send me (or best email me - given your deadline) this proof you claim to have sent me in December.

 

In the meantime I can confirm that I still wish to dispute validity of this debt.

 

The Claimant then finally provided their proof of debt (3rd May 2016) and further proceeded to confirm (on 9th May 2016) that the claim was stayed as a result of the time that had elapsed since my initial defence had been filed, rather than discontinued.

I was therefore unable to formally amend my defence at that time.

 

Having then verified the documents they emailed to me, allegedly proving the debt,

I found that there was an alleged reconstituted Egg statement showing payments made in 2010.

 

I knew these payments to be false and contacted my Bank at the time for relevant statements.

I also contacted the Claimant several times between the 21st and 28th September to ascertain further information on the source of payments and validity of the statement as I knew both to be false.

 

They responded that they were not obliged to provide this information and that the statement was a copy of the original.

 

I also contacted the Original Creditor in September 2016, in writing and by phone, for information on these alleged payments.

However they confirmed they had no records of these payments.

[dx100uk]

too much waffle IMHO.

 

just as a side note

I was playing around with figure last night

 

re point 16 of their WS...

 

they state assignment was 11979.32

they state further payments were made AFTER this assignment

[so DIRECT to the THEM]

 

well then they should KNOW EXACTLY where these came from!!

 

they can p'haps be excused for NOT knowing where the ones to the OC came from

but not ones direct to THEM>

 

also if you take..11979.32 and we ASSUME £3.61PCM continued...

doesn't make 11962.88!!

 

OPPSS!!

[balina2]

Thanks for this.

How would you suggest I re write?

Do I refer to any of your points?

 

And finally,

how do I submit?

Via email or hard copy in post?

[shamrocker]

Have you had a read around of other example witness statements posted up on other threads?

[dx100uk]

you must hard copy posted in time to meet the deadline to the court

though the copy to the claimant solicitors can go 2nd class with free proof of posting and you don't sign that copy

[balina2]

I have read through other examples but would greatly appreciate a steer - have cut down the original statement to the below. I have not received a new date as of yet

 

I am the Defendant in this case and I make this witness statement in support of my application to set aside the default judgment in 31st October 2016 (date being rescheduled)

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information or belief.

 

3. I confirm that I consider this matter to be statute barred by virtue of the Limitations Act 1980, as the last payment or acknowledgement was in 2007. This coincides with the Default Notice exhibited by the Claimant.

 

The Claimant further discloses an alleged reconstituted statement of account covering the period September 2009 to August 2010 which indicates sporadic payments of £3.61 deducted from the account balance.

 

I did not make these alleged payments, nor anyone on my behalf, thus they are denied.

 

Consequently, the Claimant is put to strict proof to evidence any transaction history within the six year period prior to the date of claim issue.

 

4. I did not receive any evidence of this debt from the Claimant until the 3rd of May 2016.

 

At which point they sent me an alleged reconstituted copy of an Egg statement showing payments made in 2010.

 

I knew these payments to be false and contacted my Bank at the time for relevant statements.

 

I also contacted the Claimant several times between the 21st and 28th September to ascertain further information on the source of payments and validity of the statement as I knew both to be false.

They responded that they were not obliged to provide this information.

 

I also contacted the Original Creditor in September 2016, in writing and by phone, for information on these alleged payments. However they confirmed they had no records of these payments on the account

[shamrocker]

I don't profess to be an expert on writing witness statements, but it needs better structure in my view, and also less detail with regards the questionable payments.

 

Something like....

 

 

1. I am the Defendant in this case and I make this witness statement in support of my application to set aside the default judgment in 31st October 2016 (date being rescheduled) [Judgement has not been made yet...right?]

 

2. In the absence of information with regards the nature of the claim, my Defence to the was set out so as to gain clarity on the source of the alleged debt and validity of the case put forward by the Claimant.

 

3. The Witness Statement of the Claimant confirms the debt to be a loan agreement I entered into with Egg in 2004(?). Therefore, it is accepted that an agreement, referred to in the Particulars of Claim as no. xxxxxxxxxxxxx, was entered into by the Defendant.

 

4. I defaulted on the loan agreement in 2007. This is confirmed by the Default Notice exhibited within the Claimant's Witness Statement as XYZ1. I have not made any payments or made acknowledgement towards this debt since 2007. Given that a period of six years or more had elapsed between the date of the last payment and the date the claim was issued, the debt is, therefore, statute barred by virtue of the Limitation Act 1980. Consequently, the Claimant has no legal recourse in this matter.

 

5. In the Claimant's Witness Statement, they disclose an account statement, exhibited XYZ2. The statement covers the period of August 2010 to August 2011 and includes a number of sporadic payments for the amounts of £3.61, which were deduced from the debt balance. They make the claim that further payments were made thereafter. I deny that these payments, or any payments for that matter, were made by me or on my behalf in the six years prior to the claim issue date.

 

6. In email communications with the Claimant's solicitor [Exhibit ABC1], they take the position that these payments defeat any assertion that the debt is statute barred.

Again, I reiterate that these payments, or any others, supposedly made by me or on my behalf within the six years prior to the claim date are denied.

 

7. The Claimant is, therefore, put to strict proof to disclose the specific details of any payments made towards the debt in the six year period prior to the claim date. The details should include - payee name, payment amount, payment method, account or reference number, and any other details they believe will assist with identifying the source of the alleged payments.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

Statement of Truth.

 

I believe that the facts stated in this statement are true.

 

Signed: ...................................................

 

Dated this day of 4th October 2016

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------

 

You need to add the correct header. Also, there are some bits in [brackets] that need to be corrected by you.

 

Hopefully Andyorch, DX, etc can offer some feedback on the above.

[balina2]

Thank you very much for this.

 

No date has been set yet - I checked with the Court today.

Therefore am I requesting it is set aside?

Is that the correct terminology?

[dx100uk]

no judgement so nothing to set aside?

[shamrocker]

Thank you very much for this.

 

No date has been set yet - I checked with the Court today. Therefore am I requesting it is set aside? Is that the correct terminology?

 

No....this is your Witness Statement, and is a direct response to their evidence.

 

all your eggs are in one basket if you submit this as you're taking the position that the debt is yours but it's statute barred.

 

I'd ideally like Andyorch's feedback on this before you go submitting anything.

 

Have their solicitors been asking about bank statements again?

[balina2]

The last message from them was to say

 

Should you still refuse to provide us with the relevant documents and at the hearing the Court decides to provide you with the opportunity to rely on any further evidence,

 

then we will invite the court to adjourn our application and relist it at the first available opportunity, after 28 days, to enable our client to consider the same.

 

In addition we will be seeking an order that you pay the costs occasioned by the hearing as such costs would have been avoided had you disclosed the relevant documentation beforehand